FRANCIS FURTADO Vs. STATE OF KERALA

JUDGEMENT

(1.) Both these appeals have come up before this Court since the office of the High Court has noticed that the court fees paid for these appeals are inadequate. The question arising for decision in both these cases is similar and that is why the cases have been heard together. They are appeals against the Judgment of the Subordinate Judge's Courts under the Land Acquisition Act, the former appeal being from L.A.R. No. 776 of 1973 of the Second Additional Subordinate Judge's Court, Ernakulam and the latter from the decision of the Subordinate Judge's Court, Mavelikkara in L.A.R. No. 31 of 1974. The question that arose for decision in L.A.R. No. 776 of 1973, which question is now before this Court in the appeal is based on the claim by the Appellant that he should have been paid compensation for the compulsory acquisition of land on which he was running a photographic studio for many years. He had been evicted from the business premises thereby resulting in loss of earnings to him. According to him, he was a tenant of the premises for a quarter of a century and though he is now thrown out he was paid only a nominal sum as compensation by way of shifting charges. He claims that he has been denied the legitimate compensation due to him under the provisions of the Kerala Land Acquisition Act. The learned Judge did not accept his case for compensation, evidently since the learned Judge did not find any provision under which such compensation could be awarded. He refers to lack of precedent which enabled him to award compensation. The decision of the Calcutta High Court cited before the learned Judge did not, according to the Judge, apply to the facts of the case. The result was that the Appellant substantially failed in his claim for compensation. We say, substantially, because what was awarded was only a sum of Rs. 75 and that was by way of shifting charges. In the appeal, he has challenged the decision of the court below and for the purpose of jurisdiction, he has valued the revised claim at Rs. 22,420. But court fee of only Rs. 10 has been paid and the provision applicable has been shown as Schedule II, Article 3(iii)A(1)(a) of the Court Fees Act, 1960. It is Section 51 of the Court Fees Act that is applicable and the office noticed that ad valorem fee had to be paid on the amount to be claimed. That having not been paid, the matter has come-up for hearing.

(2.) In the other appeal, there is a dispute as to the extent of the property acquired. The court accepted the case of the extent as urged by the State and awarded compensation on that basis. The rate at which the land was valued is not in dispute. But the dispute concerns the finding of the Subordinate Judge that compensation will be awarded for 3.65 acres of land only which was the extent acquired by the State while the claimant was given liberty to take possession of any land in excess of the red shaded plot marked in the plan produced by the State and do whatever he liked with regard to that land. There is also a further observation in the judgment that the claimant was given liberty to initiate appropriate proceedings against the Respondent-State for getting the compensation for the excess land if any, taken by the Respondent over and above the land shown in red colour in the plan attached to the decree. The Appellant's case here is that the directions made in the judgment, which have been adverted to just now, are incompetent and virtually what the learned Judge had done was to abdicate his function to decide the extent of the land acquired and, therefore, what is in dispute is not actually the quantum of compensation but the impropriety of the impugned directions in the judgment.

(3.) It is the contention of the learned Counsel Sri Manuel T. Paikaday, appearing in both these appeals that there is no dispute as to the amount of compensation as such in these appeals and the subject-matter of the appeals cannot be said to be any particular sum of money claimed by the Appellants in these cases. In the proceedings before the Subordinate Judge's Court though no compensation has been allowed to the Appellant in regard to loss of earnings, its failure to find that the Appellant was entitled to such earning is challenged in the appeal and hence the challenge is said to be not to the quantum. The learned Counsel would contend that the quantum would automatically follow when once the right is determined. It is more so in the other appeal where there is not even any dispute as to the rate of value per cent for the land. Therefore, in that case, if the claim of the Appellant that larger area was acquired was accepted, what exactly was the relief to be granted in terms of money had only to be worked out and, therefore quantum was not a matter which called for adjudication. Hence according to the learned Counsel, in both these cases the subject-matter is not any specific amount but is only an adjudication of the right of the Appellants to get compensation. That being the case, it is contended that Section 51 which deals with a claim for specific amount does not arise.